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2015 DIGILAW 258 (RAJ)

Namisha v. State of Rajasthan

2015-01-28

NIRMALJIT KAUR

body2015
JUDGMENT : Hon'ble KAUR, J.— The petitioner is a divorced lady of 31 years of age. Her father died in the year 1988. Thereafter, she got married to one Nitin Kumar but on account of certain problems, she got a decree of divorce by mutual consent on 10.2.2009. Her mother was working as Teacher Grade-III in the Education Department at Government Secondary School, Kharla but she died on 13.12.2011. The petitioner, who was entirely dependent upon her mother, after the divorce, completed her M.A. and B.Ed. and also passed the Rajasthan Teachers Eligibility Test-2011. After the demise of her mother, the petitioner is left without any support and is in great financial crisis. She filed an application before the competent authority for compassionate appointment while relying upon the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 on 17.2.2012. The matter remained pending with the State Govt. till 4.3.2013, whereby, the Deputy Secretary to the Government directed the Director, Elementary Education, Rajasthan to send the requisite documents for compassionate appointment. The petitioner was eligible on all counts. However, her candidature for appointment on compassionate ground was rejected by the Director, Secondary Education while relying upon Rule 22(Gh) of the Rules of 1996. 2. Learned counsel for the petitioner has pointed out that no rule, namely, Rule 22 (Gh) as referred in the order Annexure-10 dated 18.9.2013 is available or exists. Reply has been filed. In the reply, Rule 2(c) of the Rules of 1996 is quoted. As per the definition given under Rule 2(c), only unmarried or widowed daughters can be given appointment by treating them as dependent. 3. Thus, the issue that requires to be adjudicated by this Court is whether a divorced daughter of a deceased government servant falls under the category of a dependent or not. The petitioner being a divorced daughter is not one of the persons as mentioned in the definition of "dependents". The Rule 2(c) of the Rules of 1996 is as under:- "2(c) - Dependent means a spouse, son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased Govt. servant during his/her life-time and who were wholly dependent on the deceased government servant at the time of his/her death." 4. The Rule 2(c) of the Rules of 1996 is as under:- "2(c) - Dependent means a spouse, son, unmarried or widowed daughter, adopted son/daughter legally adopted by the deceased Govt. servant during his/her life-time and who were wholly dependent on the deceased government servant at the time of his/her death." 4. A bare look of the Rules of 1996 reveals that the term "dependent" means a spouse, son, unmarried or widowed daughter, adopted son or adopted unmarried daughter legally adopted by the deceased government servant during his/her life-time and who were wholly dependent on the deceased government servant at the time of his/her death. It is, therefore, clear that daughter has been mentioned in the definition of "dependent" including an unmarried and widowed daughter. 5. Although, the respondents have not raised any objection or argument with respect to the literal rule of interpretation, however, this Court is conscious of the fact that the Courts are not supposed to import any rule of interpretation except to adopt a literal construction. This Court in the similar set of circumstances in the case of Smt. Pinki vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.9177/2010) decided on 12.9.2011 dealt with the said objection after considering various literature available on the statutory interpretation as well as the judgment of the Apex Court in the case of J.P. Bansal vs. State of Rajasthan & Anr. reported in AIR 2003 SC 1405 and State of Jharkhand vs. Govind Singh & Anr. reported in JT 2004(10) SC 439 by holding as under:- "I am in absolute agreement with the counsel for the respondents and I too see no reason for deviating from the literal or strict construction of the statute, where the expression is unambiguous, however, the doctrine aforesaid is not static or just of status quo nature. Every law, in itself is kinetic and is having sufficient energy to serve its purpose and to achieve its objects for a long span. If any difficulty arises in getting the purpose of the Rule served, then to meet such exigencies, the Courts are having authority to adopt "purposive construction, which as a matter of fact is an extension or to say a dimension to the doctrine of the literal construction of a statute." 6. If any difficulty arises in getting the purpose of the Rule served, then to meet such exigencies, the Courts are having authority to adopt "purposive construction, which as a matter of fact is an extension or to say a dimension to the doctrine of the literal construction of a statute." 6. Thus, before this Court proceeds to adjudicate, it is important to also refer to the object of the scheme for compassionate appointment, which reads as under:- "The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency." 7. In the object of the scheme, what is mentioned is "dependent family member of a deceased government servant." By no stretch of imagination, it can be said that a divorced woman who has no source of income, is not dependent on her parents. The widowed daughter is included as one of the dependents inspite of the fact that she is still a part and parcel of the family of her in-laws. The in-laws family is still there to look after her. She also inherits the property of her husband, whereas, a divorced daughter has no one but her parents to fall back on. Moreover, the question of inheriting the husband's property does not arise in the case of a divorced woman. In fact, she is in worse situation then even the widowed daughter. Under these circumstances, the divorced daughter falls among the first category of dependent vis-a-vis a widowed daughter. From the definition of dependent, even an "unmarried daughter" is a dependent. A divorced daughter is reverted back to the position when she was unmarried and becomes not only dependent on her parents but is at times even at the mercy of her family. Hence, there is no reason to distinguish between unmarried, divorced or a widowed daughter. 8. This Court in the case of Smt. Pinki vs. State of Rajasthan & Ors. Hence, there is no reason to distinguish between unmarried, divorced or a widowed daughter. 8. This Court in the case of Smt. Pinki vs. State of Rajasthan & Ors. (supra) while granting similar status of a dependent to a widowed daughter-in-law held thus:- "The question now arise that if the law making authority was aware about the position of "widowed daughter-in-law" then why in the category of dependents under Rule 2(c) of the Rules of 1996, she has not been placed in explicit? To resolve this knot, a look on the relations expressly referred in the definition of dependents is desirable. The relations of spouse, son, adopted son, unmarried or adopted unmarried daughter in no way can include the relation of "widowed daughter-in-law", however, the term "widowed daughter" appears to be quite wide and that may include "widowed daughter-in-law" for the purpose of these rules. If the rule makers were intending to exclude "widowed daughter-in-law" from the category of dependents, employment of whom makes appointment on compassionate grounds inadmissible under the Rules of 1996, but it has not been done. Meaning thereby, a "widowed daughter" is also a "widowed daughter-in-law", who is supposed to serve her in-laws and children. Thus, it appears that the term "widowed daughter-in-law" is part of "widowed daughter." 9. On the other hand, learned counsel for the respondents has relied on the judgment rendered by the Jaipur Bench of this Court in the case of Uganti Devi vs. State of Rajasthan reported in (2007) 4 RLW (Raj.) 3445 to say that a divorced daughter gets maintenance. 10. The question of maintenance is on facts of every case. It is not necessary that every divorced woman gets maintenance and in case, she does get maintenance, the question is whether the same is sufficient to help her to meet both ends. In case, this was the only reason to deny compassionate appointment to a divorced daughter, then the legislature would not have included the widowed daughter. Hence, a widowed daughter and an unmarried daughter includes a divorced daughter. 11. In case, this was the only reason to deny compassionate appointment to a divorced daughter, then the legislature would not have included the widowed daughter. Hence, a widowed daughter and an unmarried daughter includes a divorced daughter. 11. The Madras High Court in its' judgment rendered in the case of P.R. Renuka vs. Director of Animal Husbandry & others (Writ Petition No. 11777 of 2007 (O.A. No. 5657 of 2002) decided on 27.10.2014, in fact, went further and included a married daughter eligible for compassionate appointment as well by holding that there can be no discrimination between a married son and a married daughter. Para 11 of the same reads:- "11. In my view, there cannot be any discrimination between a married son and a married daughter. When the petitioner has come with a plea that she was deserted by her husband and a decree of divorce was granted and she was under the care and control of her father at the time of his death, the Government cannot deny compassionate appointment on the ground that divorce was obtained after the death of her father. Making discrimination between a son and a daughter on the ground of marriage is arbitrary and violative of Articles 14, 15 and 16 of the Constitution." 12. There is yet another way for looking at the whole situation. The Rajasthan Educational Subordinate Service Rules, 1971 provides reservation for women including widowed and divorced under Rule 7-B as substituted vide Notification No. F.7(2)DOP/A-II/88 dated 24.1.2011 of the same. Thus, the legislature is conscious of the fact that a divorced woman also deserves to be placed at par with the widowed daughter. Certain departments are also giving age relaxation to widowed and divorced women. Thus, to ignore a divorced daughter for compassionate appointment is highly arbitrary, discriminatory and without any rational. There is no reason to discriminate between a widowed daughter and a divorced daughter. As submitted earlier, a daughter reverts back to her parents' family after divorce and her situation is the same as prior to her marriage. As per definition of "divorced" provided in the Oxford Advanced Learner's Dictionary, the first meaning is "No LONGER MARRIED", meaning thereby, that the situation of a divorced woman is that of an unmarried daughter and hence, "dependent" on her parents. As per definition of "divorced" provided in the Oxford Advanced Learner's Dictionary, the first meaning is "No LONGER MARRIED", meaning thereby, that the situation of a divorced woman is that of an unmarried daughter and hence, "dependent" on her parents. Thus, it really does not matter, if the word "divorced" was not separately added in the rule as the above discussion shows that an "unmarried" daughter includes a "divorced" daughter. 13. In view of the above discussion, the present writ petition is allowed. The impugned orders dated 18.9.2013 and 28.9.2013 are set aside. The respondents are directed to provide compassionate appointment to the petitioner on a suitable post for which she is eligible, within a period of two months.